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Cite as: [2008] ScotCS CSOH_17, [2008] CSOH 17

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OUTER HOUSE, COURT OF SESSION

[2008] CSOH 17

P294/07

OPINION OF LORD MENZIES

in the Petition of

THE SCOTTISH BORDERS COUNCIL

Petitioners;

For an order declaring a child K free for adoption under section 18 of the Adoption (Scotland) Act 1978

________________

Petitioners: Loudon; G Lindsay, Edinburgh City Council

Respondent (T): Brabender; Andrew Haddon & Crowe

30 January 2008

Introduction

[1] In this petition the Scottish Borders Council ("the Council") seek an order declaring a child K free for adoption under section 18 of the Adoption (Scotland) Act 1978. They also seek to dispense with the agreement of K's mother T to the making of an adoption order on the grounds (a) that she is unreasonably withholding her consent and (b) that she has persistently failed, without reasonable cause, to fulfil the parental responsibility to safeguard and promote the child's health, development and welfare.

[2] K was born on 16 January 2001. He has recently celebrated his 7^th birthday. For about the first 14 months of his life he lived with his mother T, at an address in Galashiels. T was born in 1981, and is presently aged 26. She has learning disabilities. When she was aged 17 she gave birth to a daughter, S, who was born in June 1999. The local authority of the area in which T was then living (which was not the petitioners' area) had concerns relating to T's lack of parenting skills, about her ability to care for S safely, and about her ability to manage her anger. S was subsequently placed with her grandparents (i.e. T's parents), and she has remained with them since. T exercises regular contact with S. S is a half-sister of K.

[3] K's father, AE, has shown no interest in him since his birth. He has not lived with T since K's birth, and he has no parental rights or responsibilities in respect of K. I was satisfied on the evidence which I heard that there was no prospect of his applying for an order or entering into an agreement such as is mentioned in section 18(7) of the Adoption (Scotland) Act 1978 ("the 1978 Act").

[4] After K's birth in January 2001, T cared for him in her home until 23 March 2002. Concerns were expressed by social workers and other support staff employed by the Council about T's ability to care for K; however despite these concerns, no steps were taken to remove K from T's care during this period. Following an incident on 22 March 2002 a Child Protection Order was obtained in relation to K. Since that date he has not resided with T, but has lived with a variety of foster parents. Since 19 June 2006 it has been a condition of K's supervision requirement that T should have no contact with him, and he has not seen her since that month.

[5] The Council made an application to a Sheriff on 15 February 2005 seeking to free K for adoption and to dispense with T's agreement on the same grounds as the present petition. This application was opposed by T. Having heard evidence over several days, the Sheriff granted the orders which the Council sought. T appealed against this decision to the Sheriff Principal, and on 25 July 2006 the Sheriff Principal allowed the appeal and dismissed the application to free K. Thereafter the present petition was lodged in this Court.

[6] Ever since K was taken from her care in March 2002, T has consistently sought his return to her. She has exercised her right to have the matter reviewed on a quarterly basis by a Childrens Hearing, she attended for contact with K whenever she was allowed such contact, she opposed the Sheriff Court petition and she has opposed these proceedings. (Let me make it clear that, in recording this, I am not to be taken as criticising T for this course of action; on the contrary, her position has remained constant and she has merely availed herself of the rights which the law provides to her). I ascribe no fault to any party, but it seems to me most unfortunate that uncertainty still attaches to the future of K, standing the fact that it is not far from 6 years since he was taken from his mother's care. In light of this history, I have sought to have the evidence in the present proceedings heard as quickly as possible, and to reach a decision on the matter as promptly as may be, consistent with a proper consideration of the important issues raised.

Evidence for the petitioners

[7] A case such as this inevitably generates a large number of reports, minutes and other written records. I do not seek to rehearse these in this Opinion. I heard evidence from thirteen witnesses for the petitioners over a period of some seven days. Thereafter T gave evidence, and witnesses were led in her support, for some two days. Much of the evidence was the subject of agreement in a substantial Joint Minute of Admissions which extended to 89 clauses. The most convenient way of dealing with the evidence is to divide it into chronological segments:- (i) the period before 22 March 2002; (ii) the events around 22 March 2002 which led to K being taken into care; (iii) the period during which T was permitted to have contact with K; and (iv) the period since June 2006 when T has not been allowed to have contact with K.

(i) The period before 22 March 2002

[8] Even before K's birth concerns were being expressed by the petitioners' social workers about T's ability to care for him. These concerns were centred on T's learning disabilities, her temper and her difficulties in caring for her first child S. T attended a school for children with special needs, and was assessed as a disabled person in May 1995. She gave birth to a daughter, S, on 6 June 1999. The local social work department was concerned about T's temper, and had doubts about her ability to manage her anger. T moved out of her parents' house in early July 1999 (against the advice of her social workers) and presented to the local authority as homeless on 8 July 1999. S was subsequently referred to a Childrens Hearing and placed on a supervision requirement in terms of section 70 of the Children (Scotland) Act 1995 with a condition of residence with T's parents. S has resided with T's parents since that time.

[9] Because of these concerns, Mr Douglas Aitchison, the social worker appointed to work with T and K, instructed a report from Mr George Murray, consultant clinical psychologist with the Learning Disability Service of Borders Primary Care NHS Trust, to assess T's intellectual abilities and how best the social work department should provide support for her. Mr Murray provided a report dated 22 December 2000 (No.6/1 of process) in which he stated inter alia that T's "intellectual abilities were found to be, on average, within the learning disability range. However, the profile of her scores was not uniform. She did particularly poorly on items of an educational nature and on those that involved working memory". He also observed that "given her history, her parenting skills would need to be closely evaluated and I would suggest that this is done by observation rather than by a verbal interview. It is possible that T may struggle to put into practice what she may have been told, even though she may be able to recall a verbal account".

[10] An assessment of T's parenting skills using the Parental Assessment Manual was carried out by Anne Davidson between 14 November 2000 and 9 April 2001. Mrs Davidson was a well qualified social worker with long experience of carrying out parenting assessments, and had completed between 40 and 45 such assessments of parents with learning disabilities. Her report of this period of assessment was No.6/2 of process. During this period T was receiving intensive support from several social workers, family support workers and a health visitor. There were some areas of concern during this assessment period (which of course ended before K was 3 months old). With regard to safety, it was noted that "despite believing her knowledge was strong in this area and being able to answer questions on this topic fairly well, T was observed to leave dangerous items lying around in the main living area". Major gaps were also identified in her knowledge of child development and her understanding of how children learn. However, there were many positive elements. It was noted that overall T managed K's milk feeds fairly well (although her knowledge of weaning was somewhat more limited); physical care such as cleaning and dressing seemed to create very few difficulties for T; and with regard to emotional care and development T made good eye contact with K and showed affection towards him. The assessment concluded inter alia that:

"T's strengths tend to be in the practical care of K which she has managed with very little help since he was born ....like all parents, T will require ongoing advice and support from her Health Visitor but otherwise there are no obvious concerns. T is very loving and caring towards K and seems to have formed a good attachment to him. ....T's lack of understanding relating to child development, combined with the difficulty she experiences with her own feelings, could affect her parenting as K begins to explore and become more curious. T could misunderstand and believe K was being deliberately naughty and expect too much of him too soon. The assessment did not highlight any significant risk to K but rather identified areas where T and K could benefit from some additional support".

[11] The picture that emerges from the evidence of Mr Aitchison and Mrs Davidson, and from the relevant productions, is that while there were some concerns about aspects of T's parenting - regarding hygiene, safety, problems with feeding K solids, and T's accommodation being dirty and untidy - T was making good use of the support available to her in the first 6 to 9 months after K's birth, and matters were progressing relatively well. However, Mr Aitchison stated that T began to struggle as K grew and became more demanding, and her moods would fluctuate; he stated in evidence that T's care of K began to deteriorate from about Christmas 2001. In the 3 month period after this, until 22 March 2002, it is clear from the evidence that T was finding it more difficult to cope with K; the concerns of the social work department increased and the support provided to T was intensified. On 25 February 2002 a social care worker had visited T and found her to be treating K roughly, not engaging with him and K was refusing to eat; the flat was in a mess with food all over the floor and T stated to the social care worker that she was going to give K to his Dad the next day. Two family support workers immediately visited T and found her sitting in her pyjamas. K was lying on a duvet with a bottle of milk. He was wearing a pyjama top and his nappy, which needed changing. The carpet in the living room had bits of food, biscuit etc littered around. There were lots of clothes lying around and a broken mirror was propped up on the window ledge. In the kitchen there were bags of rubbish on the floor and a cooker ring had been left on. T showed very little interest in K and stated that she hit him on his nappy and threw cushions at him. When questioned about this she said that it was not her fault she had a short fuse. She also said that she did not want K, she just wanted S, she was going to take K and leave him on his father's doorstep. When T changed K's nappy she treated him roughly, allowing him to bump his head off the floor. When K was crying and looking for comfort T refused to comfort him and he was left to cry. On this occasion the social workers removed K from T's care for one night.

[12] Mrs Anne Adams had 22 years experience as a Family Support Worker, and was involved in supporting T both when K was with her in 2001/2002 and later during contact visits. With regard to the first period she stated that if something happened in T's life (e.g. trouble with a boyfriend) that took precedence over K's needs. K would be sat in front of the television a lot of the time, and if he wanted to do something he would be ignored. T could not see danger signs - she would be at the other end of the room and shout "don't do that" but K did not understand. T always had cigarettes for herself, but sometimes she had no food for K - she did not see that food came before cigarettes. She would say that she understood advice, but she did not put the advice into practice. She did not have a bin, but left a black bag with empty tins and cigarette ends and other rubbish in it on the floor. As K got more demanding, T struggled to cope.

[13] Reports of T's care of K in the first 3 months of 2002 were not consistently bad - on 14 February 2002 it was noted that T was now feeding K solid food and buying appropriate food they can both eat; she was getting up very late and was up to all hours, but she was playing with K well and talking to him a bit. Safety was getting better but was still not ideal, and the house remained quite dirty. The conclusion of a meeting held on that date was that T was doing very well, taking onboard what she was being told. However, at an initial Child Protection Case Conference held on 5 March 2002, Mr Aitchison identified significant risks to K arising from T's inability to recognise and meet his physical needs. "T has been slow to accept advice and guidance relating to K's need for solid food and on two occasions has not fed or had food for him. T has also been aggressive towards K and rejecting him". He considered that this behaviour was likely to continue in the future and recommended that K be placed on the Child Protection Register as being at risk from physical neglect and emotional abuse. The health visitor expressed concerns in a report regarding K's care during T's mood swings and made the same recommendation. It was the unanimous decision of the meeting that K be placed on the Child Protection Register as being at risk from physical neglect and emotional abuse.

[14] Mr Douglas Aitchison's views as to T's parenting of K in February and March are summarised in the conclusions of his report to a Childrens Hearing to be held on 27 March 2002 (the report being prepared before the events of 22 March 2002). In this report (No.6/7 of process) he concluded that:

"At present there is a considerable risk that T will fail to recognise and meet K's physical and emotional needs due to her learning disabilities. For example, T has been slow to accept advice and guidance in relation to K's need for solid foods. On at least two occasions T has either not fed K or had no food for him before leaving for" (the town in which her parents live).

He identified problems with T getting into debt and went on:

"T has significant mood swings, which are directly related to events in her relationships with her family and boyfriends. These mood swings impact on her ability to respond effectively to K's physical and emotional needs because she will blame K when her relationships go wrong. A recent incident resulted in K being accommodated overnight due to T being rejecting towards K and treating him roughly".

Mr Aitchison recommended that K be made subject to a supervision requirement, although at this stage it is clear that he envisaged K continuing to live with T.

[15] Ethel Turnbull, K's health visitor, prepared a report for the same Childrens Hearing on 27 March 2002 (No.6/10 of process). Her observations included noting in October and November 2001 that T's mood swings were very evident and on occasions that T was rough with K and was not offering him any form of stimulation (which had been an ongoing concern since K was born). During December 2001 Anne Adams and Ethel Turnbull shared the same concerns about T's inappropriate feeding of K. These were three-fold -

K not being given appropriate diet - usually given milk or chocolate flavoured milk or tea all in a bottle.
T not keen to spend money on food for K. During a visit it was noted by Anne Adams that T had no food in cupboard, when Anne asked T for money to buy food T said she only had £20 and refused to give that to Anne, stating that it was for her fare to (another town) (T is given a quantity of free bus passes per month).
When K is offered food from us, T always states that it is a waste of time as he will not eat what is offered to him. K, however, does feed well from us when offered food.

Ethel Turnbull summarised her concerns as follows:

"When T's lifestyle is going well she requires slightly less support in caring for K, BUT, when this all goes wrong then K is roughly treated and T appears not to want him. T's inability to cope with her own problems does finds coping with K difficult. T is not always receptive of advice or support. T likes doing her 'own thing'".

[16] The Childrens Reporter arranged for K to attend a Childrens Hearing on the ground that he was likely (1) to suffer unnecessarily; or (2) to impaired (sic) seriously in his health or developments, due to a lack of parental care. The last three statements of facts in support of this were in the following terms:

"4. T is not always receptive to advice and guidance in the care of K. There have been concerns about her appropriate feeding of K. On 11 January 2002 T was ready to take K to Edinburgh without giving him breakfast. There was no milk or cereal in the house. T has regularly given K bottles of milk rather than more solid food for his stage of development.

5. On 25 February 2002 T handled K very roughly. She bumped K down on the floor to change his nappy and on another occasion put him down so roughly that his head bumped the floor. She was refusing to talk to K and was taking her anger out on him about something else. On several occasions when K came to her for a hug T pushed him away and left him to cry. It was not considered safe to leave K in his mother's care and he was accommodated overnight by the social work department.

6. T has significant mood swings. These are directly related to events in her relationships with her family and others. These mood swings impact on her ability to respond effectively to K's physical and emotional needs and place him at risk".

These grounds for referral were deemed established by the Sheriff at Selkirk Sheriff Court on 17 May 2002 following the acceptance of the grounds by T.

[17] Mr Douglas Aitchison summarised his concerns about T's care for K in the months leading up to 22 March 2002 in his evidence as follows. With regard to feeding, there were no significant problems when K was a baby and being fed milk. However, thereafter, T found it difficult to progress to the next stage, and claimed to social workers that K would not take his food, although when social workers gave him food he would take it. He considered that T did not have enough time to persevere with K. With regard to dress, T provided adequate clothes for K, but he would be allowed to run around for a long time in a nappy which needed to be changed, and social workers often saw him in a pyjama top and wet nappy. With regard to the state of T's flat, if she was in a good mood the flat would be fine, but if not it would be in a mess. She kept many of her belongings in black plastic bags because she hoped to move to another area; however when she made an effort to tidy up the flat it was fine. Her financial management was poor and she was in debt. When asked if she accepted advice, Mr Aitchison said that she did from time to time, provided her own needs were being met. If her needs were not being met, K's needs were not her main concern.

(ii) The events around 22 March 2002 which led to K being taken into care

[18] On 13 March 2002 Douglas Aitchison met with T and discussed her care of K with her. This discussion included the incident in February when T got in a mood and handled K roughly so he had to be accommodated overnight; a further incident in March 2002 when T was again in a mood and refused to shut an open window that K might have climbed out of; and the support workers' increasing perception that T lacked the ability to assess risks to K and that her care could be inadequate when she was in a mood. In addition, Mr Aitchison discussed with T the need for her to check out any possible babysitters with him before using them.

[19] On 22 March 2002 T had the care of K, and also had a 9 year old female cousin and T's 13 year old brother staying with her. She left all three children in the care of a neighbour, RE, while she went out. She had not consulted Douglas Aitchison (nor any other member of the social work department) about using RE as a babysitter. RE is the paternal great-uncle of K. He is a convicted Schedule 1 offender. On 22 March 2002 T was not aware that RE was a Schedule 1 offender. Whilst T was out, RE hit K on the hand and tried to suffocate him by putting a pillow over his face more than once when he cried. RE also sexually assaulted T's cousin. When she returned, T was informed of the assault on K, but did not inform the police herself. RE called the police in relation to another disturbance. When the police attended, T reported the incident. T was very reluctant to take K to hospital or to leave him there, but was persuaded to allow him to be admitted to hospital that day. On 25 March 2002 Douglas Aitchison visited T and K in hospital and asked her to allow K to be accommodated on a voluntary basis until the pre-arranged Childrens Hearing on 27 March. T refused to do this; she tried to rip K's name tag off his wrist, and asked Mr Aitchison to leave the ward, which he did. T then immediately dressed K with the help of her female friend and left the ward with K, making for the main exit of the hospital. The Child Protection Officer alerted police, who brought T and K back to the ward. The health visitor, Ethel Turnbull, noted that T was very defiant following this and was very rough with K while ignoring his needs. She eventually calmed down and agreed to stay with K. A Child Protection Order was granted on that date in relation to K.

[20] These events, and T's behaviour before, during and after them, caused Mr Aitchison to change his recommendation to the Childrens Hearing. As noted earlier, it had been his recommendation that K should be made subject to a supervision requirement, but remain in T's care (see No.6/7 of process). In a supplementary report dated 27 March 2002, Mr Aitchison recommended that the Child Protection Order is continued with a named place of residence being with a foster carer and that contact between T and K be supervised. Due to threats made by T he requested that the placement should not be disclosed at this time. (He explained in evidence that T had threatened him that she was going to get members of the E family to see him). A further set of grounds for referral were submitted to the Childrens Hearing. These included the following grounds:

"4. On 22 March 2002 during the evening, T left her son K, her brother S and her cousin Y in the care of her neighbour RE .... While K was in the care of RE he tried to suffocate K. This is an offence of wilful assault and ill-treatment in respect of a child.

5. When police attended the home of T on an unrelated matter later the same evening they were advised by her that RE had tried to suffocate her son K, and that he had also been slapping her son's hand. T understands that RE was not a suitable person to look after K but she did not appreciate that RE would be a danger to K.

6. K has been left in the care of RE by his mother T on previous occasions. On at least some of these occasions RE has attempted to suffocate K by covering his nose and mouth with his hands.

7. RE is a convicted Schedule 1 offender. He has committed an offence involving the use of lewd, indecent or libidinous practice or behaviour towards a child under the age of 17 years. He is known to the police for his violent behaviour.

8. On 23 March 2002 T reluctantly agreed to her son K being examined at Borders General Hospital. It was felt K would benefit from further monitoring and examination. T disagreed with this, and on 25 March 2002 attempted to remove K from the hospital. T continued to threaten to remove her son from the hospital and the police who believed the child to be in imminent danger invoked powers under section 61 of the Children (Scotland) Act 1995 to detain the child within the hospital.

9. On 25 March 2002 a Child Protection Order was granted by the Sheriff on K".

These grounds for referral were deemed established by the Sheriff at Selkirk Sheriff Court on 17 May 2002 following the acceptance of the grounds by T.

[21] Since being admitted to hospital on 23 March 2002, K has never resided with T, but has been cared for by a succession of foster parents.

The period during which T was permitted to have contact with K

[22] The Child Protection Order which was granted on 25 March 2002 was renewed by the Childrens Hearing on 27 March and again on 4 April. It was a condition of the Place of Safety Warrant granted on 4 April that K's whereabouts should not be disclosed to T, and that K should have supervised contact with T twice a week. At a review meeting under section 31 of the Children (Scotland) Act 1995 held on 24 April 2002 it was decided that K should remain with his current foster carers, that he should have supervised weekly contact with T, and that an assessment would be undertaken of T's parents' abilities to care for K. The Place of Safety Warrant was renewed at Childrens Hearings on 25 April and 16 May 2002 (T having told the meeting that she was fine with the reduction of contact with K to once a week).

[23] In a report prepared for the Childrens Hearing on 29 May 2002 (No.6/18 of process) Ethel Turnbull, the health visitor, made the following observations:

"Primarily my concerns are around T's behaviour, which is very unpredictable and immature. Prior to the last Childrens Hearing on 16 May 2002 T displayed some of her unpredictable and immature traits by refusing to take her medication for epilepsy, hosting huge amounts of negativity towards her parents looking after K and making verbal threats to remove K. T has needed constant teaching, observation, prompting and encouragement in all aspects of K's child care. Areas such as play, appropriate nutrition, temper tantrums, normal health and illness, including the toddler stages and challenging behaviour all required an enormous amount of support. Issues around T's lack of understanding relating to her parenting abilities and that K was seen to be a very vulnerable child under T's level of functioning along with T's parenting ability has always given cause for concern, which resulted in a high level of input from a wide variety of services, prior to his placement in local authority care".

She summarised her concerns as follows:

· T's vulnerability and unpredictability

· T's lack of understanding relating to her parenting abilities, child care and development

· K was seen to be a very vulnerable child under T's level of functioning

· T's level of parenting, which prior to K's placement in local authority care required a very high level of input from a wide variety of services, was still insufficient for T to sustain an acceptable level of care for K"

The health visitor recommended that K should be subject to a supervision requirement. In his evidence Douglas Aitchison agreed with each of these concerns, and he made the same recommendation in his report dated 12 May 2002 (No.6/19 of process). At the Childrens Hearing on 29 May 2002 K was made the subject of a supervision requirement requiring that he reside with an approved foster carer in Kelso and that he should have contact with T at least once a week and with his grandparents once a week and respite with them once a month.

[24] At a Childrens Hearing held on 28 August 2002 the supervision requirement was continued, but K was required to reside with T's parents at their address in Midlothian. At a Child Protection Case Conference held on 2 September 2002 K's name was removed from the Child Protection Register. K lived with T's parents in Midlothian between late August 2002 and about 20 June 2003. His case was transferred to Midlothian Council in January 2003, and T's parents began to take steps to apply for a Parental Responsibility Order. However, although social workers were impressed by the way in which T's parents dealt with K, his behaviour was very demanding. K had frequent tantrums whenever he was thwarted, especially when he was denied food. He would throw himself on the floor and bang his feet until he bruised them. These tantrums could go on for up to an hour and happened several times a day. He continued to have supervised contact with T, but T's parents found that they were struggling with the demands of caring for K alongside their other family responsibilities (including caring for S). They decided against seeking a Parental Responsibilities Order and indicated that they could not continue to care for K. At a Childrens Hearing on 13 May 2003 K's case was transferred back to Scottish Borders Council, and on 20 June 2003 K was placed with Mr & Mrs McL as foster carers. Anne Brind was appointed to be his social worker. At a Childrens Hearing on 2 July 2003 the supervision requirement was varied so that K should live with Mr & Mrs McL. Although previous conditions regarding contact were deleted, it was envisaged at that time that T would have regular contact with K on at least two occasions per week as part of a comprehensive assessment by the social work department of T's ability to parent K safely while at the same time considering his long term care.

[25] During the period from June 2003 to January 2005, T had contact with K for two sessions each week, of 2 hours each. (T was encouraged to take advantage of "drop in" contact at the Family Support Centre, but even though this would have meant that she would have seen K on another occasion each week, she declined this offer). For the first part of this period, until at least the spring or early summer of 2004, contact was centred on T's flat in order to allow a realistic assessment of her parenting abilities to be carried out. Thereafter, more and more contact visits took place in the Family Centre. Gradually over this period contacts became less and less successful, with T and K both apparently losing interest at least half an hour before the end of the scheduled contact period, and K showing increasing displeasure and upset at contact visits. At a Childrens Hearing on 19 January 2005 the conditions of the supervision requirement were varied so that contact was reduced for a period of 6 weeks to twice per week for one and a half hours each time, and after 6 weeks to one contact visit of one and a half hours. It became increasingly difficult to persuade K to attend contact; T undermined K's foster placement by negative remarks and K displayed increasingly distressing behaviour during contact. Anne Brind recommended to the Childrens Hearing that contact should be reduced to one visit of one and a half hours every fortnight (see No.6/51 of process) and the Childrens Hearing accepted this advice and reduced contact accordingly. Eventually, on 19 June 2006 the Childrens Hearing decided that K should have no contact with T. He has not seen her since 26 June 2006.

[26] I heard evidence from eleven witnesses for the petitioners in relation to this period. Anne Brind was the social worker with responsibility for K throughout the period from June 2003 to June 2006. Anne Davidson was responsible for the parenting assessment on T which was completed on 31 May 2004 (No.6/39 of process) and had involvement with T throughout this period. Mrs McL was his foster carer between June 2003 and about March 2005. Mr & Mrs W have been foster parents to K since March 2005 (and it is their intention to adopt him in the event that he is freed for adoption). Anne Adams was a support worker involved with both T and K and who was part of the team assessing T's parenting abilities. Janet Miller was a playleader at the Family Support Centre who was involved in contact visits between June 2003 and June 2006. Karen Brandon was an intensive outreach worker in Anne Davidson's team, who was involved in contact visits between about August 2003 and March 2006. Elspeth Kemp was a consultant clinical psychologist who carried out a psychological assessment on T dated 22 August 2004 (No.6/41 of process). Barbara Leitch was a senior practitioner in social work who was a member of the petitioners' permanence panel, and Linda Hawthorn was the professional social work adviser to the permanence panel. The evidence of each of the witnesses who was concerned with monitoring and assessing T's contact with K painted a very similar and consistent picture, of persistent concerns by the professional carers about T's abilities to appreciate risks, about her mood swings, her inability on occasions to engage with K and to understand his needs, and K's increasing reluctance to attend contact visits and his upset thereafter. The concerns of the various support workers were explained to T and discussed with her regularly throughout the period, but this did not result in an improvement.

[27] Anne Brind noted that in September 2003 T often looked to the intensive support worker and K to have her own emotional needs met, and would repeatedly ask K if he loved her and showed distress if he did not answer. It was noted in Anne Brind's report dated 6 October 2003 (No.6/31 of process) that K was always pleased to see his mother when he arrives for contact, but he was becoming increasingly distressed during and prior to contact. There were concerns about T not understanding risks to K's safety. For example, she persistently left a window open in her third floor flat, and there were concerns that K could reach this by climbing on a sofa. On occasions she would allow K to have access to the cooker while she was cooking a meal. Whilst with K in the street she would let him run across the street without holding his hand and would not always keep a close eye on him. If T was in a good mood, she would respond positively to support workers' concerns, but if she was in a bad mood she would become defensive and would take no notice. In January 2004, after a period of good visits, it was noted that:

"T's moods govern her attitude toward K (e.g. if T preoccupied then K left alone to play for long periods of time. If T is angry or fed up she shouts at K with no explanation given or becomes aggressive with an aggressive tone, e.g. snatching a toy away, telling him he can't have something). K responds to this by becoming sullen or angry ...hardly any praise is now given to K. No boundaries are set. T's language has deteriorated and she is swearing during contact at the TV. She calls K names 'dirty pig', 'minger'.... There is now little effort by T to play with K. T was very attentive to K's needs and these were carried out at K's request. K is now made to wait for T, e.g. if K asks to go to the toilet then he is made to wait until T finishes what she is doing".

(See No.6/37 of process).

In July 2004 it was noted that T does not co-operate with Mrs McL, foster carer. If for example contact is between 12.30pm to 2.00pm T insists on giving K a meal, if contact is from 2.00pm T still insists on giving K a meal or feeding him sweets. When challenged about this T replies: "He is my son. I will do what I like". Anne Brind met every 6 weeks with T and raised the same issues each time with her, but T did not take these on board. T persisted in losing interest with K after one and a half hours (at most) and the session deteriorated in the last 30 minutes. K increasingly protested about going to see T but could usually be persuaded to go by his carers. In light of all of these circumstances Anne Brind recommended that K should be freed for adoption.

[28] T found it difficult to be positive about K's foster placements. When K was staying with Mr & Mrs McL he wanted to call Mrs McL "Mummy" and T "T"; Mrs McL persuaded him to refer to T as "Mummy T", but T objected to this. When K moved to the care of Mr & Mrs W in about March 2005 he would refer to them as Mummy and Daddy; T would shout at him for this. Anne Brind stated that T disrupted K's placements, with allegations that he swore at contact visits because he had been taught to do so by his foster parents. K found T's attitude confusing, because sometimes she provided positive reinforcement about his carers and on other times was negative about them. Anne Brind and other support workers attempted to explain to T in simple words that she should try to be positive about K's foster placements, and to contain herself during periods of contact, but she failed to do so.

[29] Progressively during this period T became more interested in her own concerns and relationships (with her family and her boyfriend) and less interested in K. During contact visits she would spend long periods on her telephone to her family and others; she also talked to K about members of her family whom he had never met and about whom he knew nothing, which confused him. Although contact visits were not uniformly unsuccessful, K became increasingly reluctant to go for contact and it would take support workers 10 to 15 minutes to persuade him to get into the car to go visit T; he would then jump out of the car again for a last hug with his foster parents. All of this was discussed in simple terms with T, but she would not acknowledge that there was any ground for concern and persisted in her view that she was able to care for K on a full time basis. When she exercised contact at the Family Centre she did not engage with K in the soft play area. Although parents were not allowed within this area, T was encouraged to stand beside the area and interact with K and encourage him. Rarely would she do this, often being more interested in discussing with her support workers the possibility of her being rehoused or her financing difficulties instead of showing interest in K. Latterly K avoided physical contact with T, hiding under a table to escape this. In a report for a Childrens Hearing on 19 June 2006 (No.6/57 of process) Anne Brind observed that "K's behaviour is clearly telling us that he finds little pleasure in contact. He regresses in his behaviour becoming defiant and cheeky and avoids physical contact with T".

[30] Anne Davidson spoke to her parenting assessment report on T which was carried out between about early August 2003 and May 2004. This report (No.6/39 of process) speaks for itself and I do not rehearse its terms here. She expanded on this report in her evidence by stating how concerned she was about T's moods, and how her behaviour was affected by these. T had difficulty accepting any advice from support workers as to her routines and observed "When I get K back I'll not be heeding any of this". There were numerous examples of T not responding to K's needs, making him wait, and putting her own needs before those of K. Mrs Davidson was particularly concerned about T's lack of understanding of the need to provide stimulus to K to encourage his development. T told her that once she had care of K she would not be taking him to nursery, which Mrs Davidson considered to be vital for him to realise his potential. K became distressed by T's constant arguments with him. For example, on a sunny day T would tell him that it was raining and so they could not go out. K would point out that it was not raining, and T would say that it was, or if not, it would be raining soon. T did not provide adequate stability and security for K, nor did she give acknowledgement or praise of his positive behaviour. Mrs Davidson considered that T would need almost 24 hour support to ensure K's needs were met adequately. She found difficulties in most areas of T's childcare, and she considered that these would become more significant as K grew up. T needed a very high level of support in nearly all aspects of childcare. Not only did she not provide adequate stimulation, but Mrs Davidson had real concerns about T's understanding of safety issues, about T giving K alcohol at a very young age, about failing to give him adequate praise, and about her refusal to accept any responsibility for the incident on 22 March 2002. As Mrs Davidson put it, T blamed social workers or anybody else for difficulties but she would never accept responsibility herself.

[31] Karen Brandon was involved in supervising many contact visits between T and K between August 2003 and early 2006. She stated that if T was out with K shopping during a contact visit and was interested in something in a shop, she would lose sight of K and forget about him. At this time K was aged only about 21/2 years old and needed constant supervision. T's concentration lapsed very quickly. Although she discussed this with T in simple terms, T was quite reluctant to take advice and no improvements were made. T's attitude to K was very inconsistent - on one contact visit she would allow K to do something, and on the next visit she would tell him off for doing it. If T made a rude noise, she would laugh about it; if K did the same, he would get a row from her. The toys which she provided for him were often not age appropriate and often did not work. Although contact visits were initially meant to last for 2 hours, they frequently ended earlier, either because T had had enough or because K was getting distressed. K often got quite angry or upset. T often confused K with her conversations with him - she would tell him about her going out and getting drunk at the weekend, or telling him that he did not have a Dad but then saying that he had his Dad's nose. Overall during the period of her involvement with T and K there was no improvement in the quality of the contact visits. Although some were more successful than others, the success of the visits depended to a large extent on T's mood.

[32] Mrs J McL was K's foster carer between June 2003 and about February/March 2005. When K first came to stay with her he was very moody and prone to tantrums, but he calmed down after about 6 months or so. At first he would go for contact with T quite willingly, but as he got older he was not so willing to go and he would hide before contact visits, and Mrs McL had to coax him to go. She never discouraged him, but rather encouraged him that he should go. If a contact visit did not go well, K would return frustrated and in a bad mood and would require a lot of attention - he was not being deliberately naughty but was genuinely upset and distraught.

[33] Although Mrs McL called T "Mummy" to K, K would say "No she's not my Mummy, I'm not going there". Mrs McL would try to encourage K to talk about what had happened at contact visits, but he refused to do so. Mrs McL was an experienced foster parent, and in her experience this was very unusual as children normally enjoy contact visits with their parents and want to speak about them. K's reluctance to go to contact visits with T became more pronounced with time, and predated by many months his introduction to Mr & Mrs W.

[34] Mr & Mrs W (who, like Mrs McL I found to be most impressive witnesses who gave their evidence in a frank and open manner without exaggeration) stated that when K had contact with T while in their care it was very difficult to encourage him to go to see her. He would delay putting his shoes on, then delay getting into the car, would refuse to put his seat belt on, and he tried to "stall" for as long as possible. Mr & Mrs W stated that they definitely did not encourage this reluctance; on the contrary, they encouraged K to visit his mother and coaxed him to do so. After contact visits, K would appear to be angry and mixed up; he was argumentative and would not believe Mr & Mrs W about what they had been doing while he was visiting T. K refused to tell Mr & Mrs W what he had done with T at contact visits - he would turn his head away, avoid eye contact and say "nothing". It was part of his life that he did not want to discuss. K seldom referred to T between contact visits, and when he did so he referred to her as "T", not as "Mummy", although he was aware that T was his "tummy Mummy". His nervous, agitated and argumentative behaviour was confined to the period after a contact visit - otherwise he was open and happy, and this agitated behaviour stopped when contact ceased.

[36] Mrs Millar spoke to supervising several contact visits, including one on 17 February 2005 when T's boyfriend was in the flat. Mrs Millar reminded T of the conditions of contact, and T immediately started shouting and swearing. She then telephoned Anne Brind, still shouting and swearing, in the presence of K. T stood staring out of the window, still shouting and swearing, for some 10 minutes. Mrs Millar suggested that she paid attention to K. T's boyfriend (who was calm throughout) said that it would be easier if he left. T then telephoned her father, still not giving K any attention. Mrs Millar pointed out that T had not given K any lunch, whereupon T gave K sweets, crisps and a fizzy drink. There was no positive play or communication during this contact visit. Mrs Millar said that T did not know how to deal with K's mood; if he was looking for more attention, he would play up and T would raise her voice or tickle him. She would shout "K don't do that". Mrs Millar advised her as to how to cope with K, but T did not really take on board this advice. On another occasion on 26 May 2005 Mrs Millar took K to the Family Centre to visit T. K was asking for toys, but T said she needed a coffee first because she had had no breakfast. While T had her coffee Mrs Millar got toys out for K. K then came in and asked T to play with him outside, but T said that they would need to go to the shops to buy a present for a friend's daughter. K trailed along behind T to the shops, and there was no conversation or interaction between them. Like the other support workers, Mrs Millar gave T advice, but T ignored this or in any event did not put it into practice.

[37] Elspeth Kemp was a consultant clinical psychologist who prepared a psychological assessment of T. She spoke to her report and supplementary report (Nos.6/41 and 6/68 of process). She had not seen T since 2004. By the time she gave evidence she had prepared approximately 750 reports on parenting skills, and had been an expert witness in Court on about 70 occasions. I do not summarise her reports here, but she expanded on the contents somewhat in her evidence.

[38] Miss Kemp stated that having discussed the incident of 22/23 March 2002 with T, T's view was that this was simply an incident in the past - it had happened but was no longer relevant, and she had no understanding of it as a potential catastrophe. With regard to paragraph 37 of No.6/41 of process, Miss Kemp confirmed that T used the word "neglect", but Miss Kemp did not think that T understood the meaning of this word. T was however aware that one of the concerns of the support workers was that she had shouted at K. Miss Kemp reiterated that T could only look at the question of where K should live from her own perspective - she could not look at it from K's perspective, and there was no acceptance that it might be best for K to remain in a settled environment. Miss Kemp was of the opinion that because of T's learning difficulties she was unable to prioritise things. This was important in the practical care of a young child - for example, if the telephone was ringing, the kettle was boiling and a child was crying, it was important to be able to prioritise and decide which was the most important matter to be dealt with. The inability to prioritise was very important in Miss Kemp's opinion and was typical of someone with T's IQ. T completed the Wechsler Adult Intelligence Scale - III Edition (WAIS-III) which showed a full scale IQ of 64 - significant cognitive impairment/learning difficulties. Miss Kemp was asked if there was a figure for full scale IQ below which a person could not be entrusted with parenting. Although Miss Kemp was reluctant to put a figure on this, she observed that a full scale IQ of 64 would make it "very very difficult", and certainly a full scale IQ of 60 would be too low to enable someone to care safely for a child. With an IQ of 64 she stated that one would need someone there to help all the time - you could not look after a child on your own, but might be able to cope if everything else was in place and you had a "live in Granny". If a stable partner was present to provide 24 hour help this might be enough. Miss Kemp also observed that T's emotional state is relevant to her ability to look after children, particularly given her learning difficulties. She would have great difficulty looking after children anyway, but she would certainly need to be emotionally stable. When Miss Kemp saw T, she was still fairly unstable. With her difficulties over prioritisation, Miss Kemp retained serious concerns about the safety of any child in T's care. She was asked what her opinion was as to the benefits to K of contact with T being reinstated; her opinion was that contact would be likely to be disruptive to K and unsettling in his placement. His last contacts with T were not very positive, he was reluctant to see her, and T behaved in a way which distressed him. She observed that reluctance by a child to see a parent for contact on one or two occasions was not hugely significant, but if this persisted, it became a significant matter.

[39] Miss Kemp considered that it was important that professional supporters had shown T how to play with K, by modelling and playing with him on many occasions, but that this did not appear to result in any change in her behaviour. She observed that if one was looking at K's best interests, one would want him to be happy where he is; T did not seem able to do this by being supportive to him of his placement. Although it appeared from the notes of contact visits that there had been successful contacts on occasions, this was not consistent. Miss Kemp's area of concern was that T was not interested in what K was doing in his placement but was rather more interested in her own life and unhappy about K referring to his foster carer as "Mummy". She was therefore not reinforcing or supporting the placement but undermining it. Miss Kemp said that she had seen plenty of birth mothers (and fathers) being supportive of a placement even if they did not agree with the need for fostering or adoption. It did not appear that T was able to do this. Miss Kemp accepted that it would have been helpful if she had seen T more recently than 2004.

[40] The involvement of both Barbara Leitch and Linda Hawthorn was principally through their membership of the permanence panel which considered K's long term care and which recommended on 8 October 2004 that a Freeing for Adoption Order should be sought, the final decision in this regard being that of the Chief Social Work Officer (see No.6/71 of process). Each of them gave evidence that although the various minutes or decision sheets of the permanence panel did not record very fully consideration by the panel of alternatives to adoption, there had in fact been discussion about possible suitable alternatives. It is recorded in No.6/71 that "the panel agreed as K is very young he needs to be part of a family, there are no suitable relatives to care for him. Adoption is the best option to provide K with the lifelong security he will need from a family". Mrs Hawthorn had a clear recollection that the options of placing K with a member of his family, or long term fostering, or a Parental Responsibility Order, were discussed at the meeting on 8 October 2004. Adoption provides a more secure long term future than foster care: long term fostering would mean that K would remain "within the system", and subject to regular Childrens Hearings and social work involvement. Thereafter, a decision was made by the Senior Social Work Officer to proceed with freeing for adoption proceedings. A petition by Scottish Borders Council was lodged at Selkirk Sheriff Court seeking an order freeing K for adoption, and evidence was heard at proof over several days in September 2005. (During this period T was still having contact with K for one and a half hours per fortnight). On 22 February 2006 the Sheriff pronounced an order declaring K free for adoption and dispensing with the agreement or consent of T. T appealed to the Sheriff Principal, who sustained the appeal on 25 July 2006. On 19 June 2006 a Childrens Hearing varied the supervision requirement to provide that there should be no contact between K and T (see No.6/58 of process). T's last contact visit with K was on 26 June 2006 (see No.6/74/161 of process). At this visit T became distressed and started to cry. Anne Brind noted that she tried to hug K, and K clearly did not want to hug her. T left and K was unconcerned by this. T has not seen K since 26 June 2006.

(iv) The period since June 2006 when T has not been allowed to have contact with K.

[41] Since contact with T was ended, K has continued to live with Mr & Mrs W. During this period Patricia Driver has been his social worker. She noted in October 2006 that K has not asked to see T nor anything about her since 26 June 2006. She recommended that contact between T and K should not be reinstated (No.6/61 of process) and the Childrens Hearing accepted this recommendation. This has remained the position ever since. Patricia Driver was instructed to initiate the present petition proceedings. She has met T fairly regularly since August 2006; these meetings have been in her office, and during them she has discussed the terms of the various reports and minutes concerning K. However, she had never been to visit T at her home, because she did not consider this to be relevant - she agreed with the decision which had been made before her involvement that contact should be terminated. She had frequent contact with T and her support worker, Margaret Galbraith, and there was nothing to suggest any change in T's circumstances. She expressed the opinion that K was nearly 7 years old and that a decision needed to be made as to whether he should be adopted or not. She was aware that K's father was of no fixed abode and was not interested in having care of K nor in seeing him at all. She was also aware that different members of K's family had been considered as potential foster parents and found to be unsuitable. Since her involvement in the case, neither of T's parents had approached the Council to request that they be considered as foster parents for K, and there was nothing in any of the Council's records to suggest that they had changed the position which they adopted in early 2003 that they could not continue to care for K. K had never mentioned S to Patricia Driver (nor, so far as she was aware, to Mr or Mrs W). She had made sure that Mr & Mrs W talked to K about T, and gave K the opportunity to talk about T to them; moreover, she had passed letters, cards and photographs between K and T and vice versa, and had always told K that these came from T.

[42] Patricia Driver attended the meeting of the permanence panel on 21 November 2006 at which the decision was made to recommend that a Freeing Order be pursued as soon as possible. Before this, she and Margaret Galbraith, T's social worker, had explained to T that it was likely that the Council would be pursuing a Freeing Order. She confirmed the terms of the minutes (No.6/64 of process) - K was progressing well with Mr & Mrs W, he felt very much part of their family, he was very secure and blossoming well into a happy, secure little boy. He was getting on well at school, he could be insecure at times but he was starting to come out of his shell. He never mentioned T and felt that Mr & Mrs W were his family now. The permanence panel's recommendation was accepted by the Chief Social Work Officer on 28 November 2006.

[43] K's care remains as set out in the Care Plan in No. 6/66 of process. T continues to be updated on K's progress four times per year (and on any occasion on which something significant has occurred). Patricia Driver could not recall T asking about K outwith those four occasions, but Ms Driver kept her fully informed and obtained her permission to Mr & Mrs W taking K on holiday to Canada in 2007. T received photographs and postcards from K. T was kept fully informed about K's progress. In Ms Driver's opinion there had been no significant change in T's circumstances and a Freeing Order remained necessary in K's best interests. She prepared the Adoption Agency Report dated 2 February 2007 which was lodged with the petition (No.6/2 of process).

[44] Mr & Mrs W also gave evidence about the period since T has not had contact with K, and about his present circumstances. They live on a farm in the Borders, and K is very happy and settled with them. He refers to them as "Mum and Dad". His main interests centre on the activities on the farm - they described him as a "great outdoors person"; he is also a keen swimmer and likes to watch sport on television and involve himself in anything that Mr W is doing. He has plenty of friends, he attends the local primary where he is doing very well; although he has a slight problem with numbers, he is a very good reader. He has frequent contact with Mr & Mrs W's wider family. Mr & Mrs W continue to raise T in conversation, but K "just blanks them" and does not want to talk about it. They make sure that any birthday cards, Christmas cards and presents from T are seen by K and that he knows they came from T, and he maintains a life story box where all such things are kept. Mr & Mrs W realised that they would not be able to adopt K if he was not freed for adoption, but they intend to adopt him if the Court pronounces a Freeing Order. If not, they would like to continue to be K's long term foster parents. They both thought that two way correspondence between T and K was beneficial to K, and they would continue to encourage this.

Evidence for the respondent

[45] T gave evidence herself, and I also heard evidence from each of her parents and from her partner, G.

[46] T was aged 26 at the date of the proof and lived at an address in Galashiels. She had been in a relationship with G for some three years, and she was expecting their baby which is due in May 2008. They presently live in a top floor flat, but hope to be rehoused in a bottom floor flat as this would be safer. She described herself as pleased at being pregnant, but kind of shocked, as it was a bit too close to the Court proceedings. Until recently she had been working three days per week as a cleaner, which was a job which had been found for her through a work support scheme, but she stopped this job, partly because she was finding the Court case stressful, and partly because of her pregnancy. She would not return to work until the baby was at nursery or primary school; G was working full time at the present but was planning to cut down his hours to spend more time with her and the baby.

[47] T sees her parents most weeks, and sees her daughter S whenever she wants to, either at her parents' house or when S comes to stay with T. S stayed with T during the summer holidays in 2007 for a weekend, from Friday to Sunday. When S comes to visit, T usually takes her shopping and buys her clothes, toys and such like. T accompanies S on occasions to karate classes; S calls T "T" and T's parents "Mum and Dad", although S knows that T is her Mum.

[48] K's father was AE. T no longer sees him and has no contact with him. After K's birth T spent almost a week in hospital, and then brought K home. Social workers were not closely involved at first. It was not until about January 2002 that T felt that she was struggling a bit with K. She was really, really close to K, and she loves him. When social workers and other support workers began to help her she felt that she got on fine coping with K; when she did not understand the words which they used, they would explain using different words. When K began to need solid foods, T was not eating much herself; she would make food for K rather than for herself. Although the social workers told her their concerns about K's safety, particularly regarding the open windows, T said that she continued to leave the windows open as she knew that K would not go near them - she had told him that it was dangerous and that he should not go near them. (She said that the windows had child locks on them and would only open about one inch wide). They were worried that K would open the front door and run downstairs, so she locked the front door. Going downstairs she would hold K's hand. Although she did not have a safety gate for the kitchen at first, she bought one and got one of her friends to fix it up for her; this was when K was aged 2 or 3. She would usually shut the kitchen door when K was there - she did not think that the social workers were worried about the kitchen door when K stayed with her.

[49] She knew that RE had moved into the flat across the landing from her flat; he was AE's uncle, and so K's grandfather's brother. T knew him when she stayed at her Auntie Margaret's. She had spoken to him and saw him frequently. She got to know him and did not know that there was anything wrong with him. She did not hear anything about him. Although she told the police after the incident on 22 March 2002 that RE was a pervert, this was just something that came into her head. She denied that before this incident, she had thought that there was something not quite right about RE, and she denied that she had ever said such a thing to Elspeth Kemp, Douglas Aitchison or anybody else.

[50] On the evening of 22 March 2002 T had her wee brother, her cousin Y and a friend L staying with her, in addition to K. She decided to go out to the chip shop with her friend L for 10 to 15 minutes. She tried to get AE's brother M to look after the children, because he had previously said that if she needed someone to look after K he would do so. However, she could not find him. She therefore went across to RE's flat and asked him to look after the children, and he came across to her house and agreed to do so. T and L returned from chip shop and Y said that RE had tried to attack her and had tried to suffocate K. T understood that RE had put his hand or something over K's face. She took her brother into the bedroom and he told her the same thing. She was upset and told RE to leave the house. She then contacted AE's brother M (whom she had failed to find earlier); she did not think about contacting the police because she was scared that social workers would become involved and they would take K from her. M came round to her house, she told him what had happened and he and L kicked RE's front door in. RE called the police; when they arrived, she said to them that RE "is a pervert". This was the first thing that came into her head. It had not occurred to her before that time.

[51] Following this incident police officers took T and K to the hospital. She did not stay in hospital that night, but went home. On the following day (Sunday), doctors told her that she could pick up K from hospital on the Monday morning. When she went to collect K, the doctors said that Douglas Aitchison had telephoned and she could not take K home. She was upset and angry at this - she wanted K home, he's her only son. As she put it, "he's my wee boy, we have a special bond together". She decided to leave with K even though she had been told that she could not do so. They got to the exit door of the hospital when the police took them back inside. She could not recall any social workers explaining why K could not come home with her. Two days later she heard that K was being referred to a Childrens Hearing; she attended that hearing, and remembered being told that K was not coming back to her.

[52] After K went into foster care, she saw him for two hours twice a week, mainly at the Family Centre. Then her parents said that they would look after him, and she was quite happy about that - he would still have been in the family. She visited him in a Family Centre close to her parents' house every Wednesday, and he was pleased to see her. Her contact was supervised by her parents; he would get angry and upset and start hitting her when she left, because he wanted to go with her. However, she felt that her parents could not cope with caring for both K and S; they told her that they could not handle K and his temper tantrums.

[53] When K was returned to foster parents in the Borders, T denied that social workers or other support staff showed her how to look after K or to play with him - although she had heard evidence from several of them in Court that they had done so, this was simply not true. When Anne Davidson carried out her parent assessment, T said that she felt good and that she was doing things OK - K was happy, running about and having fun. She was doing well looking after K and she was coping. As soon as Anne Brind mentioned about getting a kitchen gate, she got one and a friend put it up for her, because she did not want K to get burned. When Anne Brind told T that she did not think that she was doing well with K, T was upset and disagreed with her. She did not want K to be freed for adoption, because he should be with his Mum. It was best for him to be with his family. She said that she loved K - he is her pride and joy.

[54] T thought that contact with K was better in her house than in the Family Centre, and she was not happy about contact being moved to the Family Centre but she knew that it had to be done because of the stairs at her house (K having banged his head) and the road (K having more than once let go of her hand and run onto the road). She had explained to K that he should not do this. When she was told that K was being moved to pre-adoptive parents, she was upset. She continued to see him for contact at the Family Centre after he moved to be with Mr & Mrs W. She thought that he was quieter in himself, not the same old K running about and playing. He referred to Mr W as "Daddy" and spoke about him being on the tractor or K helping him with the animals; T was a bit upset because Mr W is not K's Dad. He called Mrs W "Mum" and T could not bear to listen to him and got upset because he was calling someone else Mum. T said that Mr & Mrs W are nice people and she could not say a bad word about them, but she is still not happy with K being there because he belongs with his real family. She could look after K now - she has grown up and she is in a stable relationship. However, she did not know how K would feel if he returned to live with her - she knew that it would be stressful for him to see her not having seen her for one and a half years, and she did not know how she would stop him feeling stressed. She would follow the advice of the social workers. She still wants K back, and if the Court decided that he should stay with Mr & Mrs W, she would not accept this. Her partner G had met K when she had contact with him and on days when he was off work, and immediately they got on together very well. She reiterated that it was best for K to come back to her care, because it's where he belongs, and all she wanted was a chance to be a Mum to him. She thought that she could cope with looking after K and the new baby quite well. She accepted that K and G only met each other about four times and that was when contact was at her house, not at the Family Centre, so it was quite a long time ago. She had been sent a school photo of K, and a photograph of him on holiday in Canada with Mr & Mrs W, and would like this to continue if K stays with them; she would trust Mr & Mrs W to do that and to make sure that K always knows that she is his "tummy Mummy". She agreed that K was happy where he is and that Mr & Mrs W are looking after him quite well.

[55] T's partner G is aged 27 and employed as an electrical specialist with a large electrical store. They met on 5 November 2004 and had been in a relationship together for more than 3 years. He was looking forward to the birth of their child, which would be his first, and wanted to take as large a role as possible in bringing up the child. He intended to reduce his hours of work - he could take a year off if need be, although he did not intend to do this. He had met K on several occasions at contact visits at T's house, and he was a lovely little boy who took to G quite well. He last saw K some one and a half to 2 years ago. Over the last 3 years G thought that T had changed - she was not so anxious or on edge, she had calmed down a lot and she laughs more now. She does a very good job with the housework and keeps the house very clean. If K returned to live with T, G would bring him up as his own child. He could still see Mr & Mrs W, and G did not think that it would be confusing for him. T and G lived together at G's address, and T plans to give up the tenancy of her flat.

[56] T's parents, Mr & Mrs McN, also gave evidence in support of T. Mrs McN stated that she had four children (including T), and had looked after S as her own child since she was about 2 weeks old. S now goes and stays with T quite often overnight at weekends, and S gets on really well with G. Mrs McN said that they offered to look after K because T asked them to do so; however, every time T visited him K would throw a tantrum, screaming for his Mummy and waking S up. When they stopped caring for K, she assumed that he would have gone back to T. Initially after they stopped looking after K they had contact with him once or twice at a Family Centre, but they gave this up to enable T to see him more. She said that no social workers had ever asked her if she would look after K again - if they had, she would have said yes. However, she accepted that she had never told any social workers that she would look after K, and when she gave evidence in the Freeing for Adoption proceedings in the Sheriff Court she never mentioned this. She accepted that her position had changed since then, and that she had never told the petitioners of her changed position. She did not think that T would have any problems looking after a new baby.

[57] Mr McN confirmed that he and his wife had brought up S as their own child, and S calls him Dad, although about one and a half years ago on the advice of a student social worker, he sat down with S and told her the truth that he was her grandfather. When K was living with T, Mr McN saw them once each week and she was doing fine looking after K. When he and his wife had K living with them, he was crying and screaming for his Mum, keeping the children awake - he was fine when T was there, but after contact he would throw a tantrum. After he was taken into foster care they saw him for a good few months and he was fine. Like Mrs McN, Mr McN gave evidence in the Freeing for Adoption proceedings in the Sheriff Court; he accepted that he did not mention in the course of his evidence that he and his wife would be able to care for K, and he had never contacted any social worker with Scottish Borders Council to suggest this, but this was because he knew that they would not be allowed this. If anyone had asked him, he would have said that T deserves a fighting chance. He has noticed a big change in T since she met G - she has grown up a lot and can stand on her own two feet better. She has matured and knows a lot more now. He considered that she deserved to get K back.

Other available material

[58] In addition to the evidence on behalf of the petitioners and on behalf of the respondent, there was other written material before me. First, there was a report of the advice of the Childrens Hearing, dated 9 January 2007 (No.3 of process). This advice includes the following passages:

"K is at a critical stage in his development, having started primary school and now has a loving, safe and secure base which will give him a stable and clear and long term future. His carers are his prospective adoptive parents. There is no doubt that K's mother cares deeply for her son, but she has extreme difficulty in understanding her child's needs and is unable to keep him safe at all times".

The Hearing's advice is that the Scottish Borders Council's application to free K for adoption is in his best interests and will provide him with the safety and the security that he needs. I also had before me two reports by Catherine Dowdalls, Advocate, one in her capacity as curator ad litem to K (No.8 of process) in which she expresses the opinion that the respondent is unreasonably withholding her consent to an order freeing K for adoption and that it is better for K that an order should be made under section 18(1) of the Adoption (Scotland) Act 1978 freeing him for adoption than that no such order be made; and the other as reporting officer (No.9 of process). Also before me was the substantial Joint Minute of Admissions to which reference has already been made.

Submissions for the petitioners

[59] Counsel for the petitioners referred me to the statutory framework for an application such as this - (i) the Adoption Agencies (Scotland) Regulations 1996 (S.I.1996/3266), Regulations 7 and 11; (ii) Children (Scotland) Act 1995, section 73; and (iii) Adoption (Scotland) Act 1978, sections 6, 6A, 16, 18 and 24. Counsel accepted that in considering this matter I required to approach the matter in two stages - first, by considering whether either of the grounds in section 16 of the 1978 Act relied on have been established, and second, if so, whether the consent of the respondent should be dispensed with, the safeguarding and promotion of the welfare of the child being the paramount consideration in this second stage. I was referred to the decision of the First Division in Lothian Regional Council v A 1992 S.L.T.858 (particularly at 862E-L), and West Lothian Council v McG 2002 S.C.411, particularly at paragraphs 53, 56, 59 and 62 to 64.

[60] The petitioners relied first on the ground contained in section 16(2)(c) of the Adoption (Scotland) Act 1978, namely that the respondent had persistently failed, without reasonable cause, to fulfil one or other of the following parental responsibilities in relation to the child - (i) the responsibility to safeguard and promote the child's health, development and welfare. In this regard, and in particular with respect to the question of what constitutes persistent failure for the purposes of this subsection, counsel referred me to G v M 1999 S.C.439, particularly at page 450A-D/E. Counsel for the petitioners expressly stated that she was not relying on any evidence in relation to contact periods in support of her submissions under section 16(2)(c), but was only relying on the time when K was living with T, in the period up to 22 March 2002 (and including the events surrounding the incident on that date). However, she submitted that the evidence disclosed failures on T's part which were neither limited nor transient and were still of significance, even though they happened some time ago. With regard to the phrase "without reasonable cause", counsel referred me to Angus Council v C 2000 S.L.T.761 in support of the proposition that T's learning disabilities do not amount to reasonable cause for the purpose of section 16(2)(c). T knew that she should be keeping K safe and should be feeding him, giving him adequate stimulation and emotional support, but she was not doing this. Reasonableness is to be judged objectively for the purposes of section 16(2)(c), and learning disability or mental incapacity does not amount to a reasonable cause.

[61] The petitioners also rely on the ground in section 16(2)(b), namely that the respondent is unreasonably withholding her consent. Counsel referred me to the well known passage in Lord Hailsham's speech in Re W (An Infant), [1971] A.C.682 at 709, and again to G v M (supra) at page 448/449. She submitted that the reasonableness of a decision by a birth parent to withhold consent is to be judged objectively by the standard of a hypothetical parent who has in mind the paramount consideration set out in section 6 of the 1978 Act. This assumes that the parent will, in making his/her decision, recognise that adoption extinguishes all parental rights of the birth parent, leaving it in the hands of the adopters to decide to what extent, if any, the birth parent will have a part in the life of the child.

[62] Turning to the evidence, counsel invited me to prefer the petitioners' witnesses to those for the respondent. Although she accepted that T tried her best to be honest in evidence, there were some issues on which her evidence conflicted with that of numerous credible and reliable witnesses for the petitioners - for example, whether the window in her flat was ever open when social workers were there. Counsel also pointed to the differences of view between T's parents - Mrs McN being of the view that K should come back to them, while Mr McN thought that K should go back to T because she deserved this. Counsel reminded me that both sets of grounds of referral which were included within No.6/12 of process were deemed to be established by the Sheriff on 17 May 2002 following the acceptance of the grounds by T. These were all significant matters, particularly paragraphs 4, 5 and 6 of the first set of grounds of referral (No.24(2) and 24(3) in the process papers). These are enduring and significant matters and cumulatively indicated the persistent failure, without reasonable cause, to safeguard and promote K's health development and welfare. Moreover, they are of enduring significance when looked at against the evidence as a whole because they shed light on T's continuing ability to "multi-task" and to cope with the pressures of bringing up children. When one takes these together with the matters deemed established by T's acceptance in the second set of grounds of referral (at pages 24(4) and 24(5)), this provides a useful summary of the ways in which T failed persistently to fulfil her parental responsibilities in the period up to around 23 March 2002. When one looks at the whole evidence of the social work witnesses regarding feeding, safety issues, T's mood swings and her general attitude, the ground in section 16(2)(c) has been established. Counsel also relied on paragraph 88 of the Joint Minute of Admissions, in which it is agreed that in a report of circumstances of incidents leading to referral by DC Anne Crow dated 26 March 2002, it is stated 'T informed DC Crow and Theresa Revell that she knew RE to be a "pervert"'. Whatever her knowledge of RE's background, counsel submitted that T knew that he was not a suitable person to babysit K, and he had looked after K before this. There was no suggestion on behalf of the petitioners that T deliberately harmed K, but her attitudes and failures did nonetheless harm him. Moreover, she undermined his foster placements by her attitude towards them - on the evidence she allowed her negative feelings to be apparent; on the expert evidence it was clear that even a neutral attitude was not sufficient to prevent the undermining of a placement, and a birth parent required to provide positive support for the placement. It was clear that T had not done this, and might not be able to do this.

[63] Counsel submitted that the facts relevant to section 16(2)(c) were also relevant to the question whether T was unreasonably withholding her consent in terms of section 16(2)(b). A reasonable parent in T's situation, looking at all the circumstances objectively, would realise that she was unable to care adequately for K, and that K's best interests lay with adoption by Mr & Mrs W. No matter how much more mature emotionally T is (or considers she is), the fact remains that her full scale IQ on the Wechsler Adult Intelligence Scale - (III Edition) is 64, and on the basis of the unchallenged evidence of Miss Kemp there is no scope for any real change in this regard. Counsel submitted that both grounds relied on in the petition are established.

[64] Turning to the second stage of the test, counsel referred in passing to Aberdeenshire Council v R 2004 Fam.L.R.93 and Dundee City Council v GK 2005 S.C.326. In considering the second test, the Court required in terms of section 6 of the 1978 Act to have regard to all the circumstances, but in particular to have regard to the need to safeguard and promote the welfare of K throughout his life as the paramount consideration. The flaw in the evidence of T and her witnesses was that they were considering T's interests principally, rather than K's. There was nothing to suggest that T's ability to care for K was significantly improved now compared to when her parenting abilities were assessed by Anne Davidson. Although no recent assessment had been carried out, on the basis of Elspeth Kemp's evidence no significant change would occur in T's learning disabilities, so there was no need to carry out another assessment. The petitioners accepted that T had been in a relationship with G for some 3 years and it was not disputed that she may have more emotional stability and support than in 2001/2002, but the arrival of a new baby was a major consideration. There were no viable alternatives to adoption: Mr & Mrs McN had been tried as carers in the past, and had made no attempt to indicate to the petitioners (or to the Sheriff or the Childrens Hearing) that they would change their position and care for K in the future. On the evidence, long term foster care would result in K being retained "within the care system" which was not desirable. Although a detailed written report of the consideration of alternatives was not provided, on the evidence it was clear that the permanence panel considered all alternatives to adoption. Having regard to T's mood swings and the inconsistency of success at contact visits, it was not realistic to consider T as a suitable carer for K, nor was it realistic that she should have resumed contact with K. Indirect contact between K and T would continue, and it was clear from the evidence of Mr & Mrs W that they would continue with indirect contact between T and K, and that T trusted them in this respect.

[65] Counsel submitted that the grounds under sections 16(2)(b) and (c) have each been established, and that it was in the best interests of K to be freed for adoption. She moved me to grant the application to free the child for adoption, to dispense with the respondent's consent, and to terminate the supervision requirement in terms of section 18(9) of the 1978 Act.

Submissions for the respondent

[66] Counsel for the respondent agreed that it is necessary to approach the question whether the respondent's agreement to an adoption order should be dispensed with in two stages, and drew my attention to the decision of the First Division in Dundee City Council v GK 2006 S.C.326, [2005] CSIH90. She agreed that there was no issue about the father of K - there was nothing to suggest that he intended to apply for the care of K.

[67] With regard to the question of whether the respondent has persistently failed without reasonable cause to fulfil the responsibility to safeguard and promote K's health development and welfare, counsel submitted that there was insufficient in the period between K's birth in January 2001 and December 2001 to suggest that any failings were sufficiently serious or persistent to satisfy the test. During this period Douglas Aitchison was only visiting T about once each month, and Anne Adams was only visiting her once per week. There was no statutory involvement by the Social Work Department and any concerns which Anne Adams had about T's care for K were not serious enough to warrant further support being provided. George Murray's psychological assessment did not recommend that T would be unable to care for K. Anne Davidson's parenting assessment (No.6/2 of process) was not too critical of T and concluded that her strengths lay in practical care of K and although "like all parents, T will require ongoing advice and support from her health visitor otherwise there were no obvious concerns" and no significant risk to K was identified.

[68] In the period between December 2001 and 22 March 2002 T was provided with additional social work support, and there were some positive remarks about her progress. Douglas Aitchison stated in evidence that there was no question of removing K from T's care until the incident on 22 March 2002. Counsel did not suggest that T's learning disabilities excused any failings nor that they made any failings reasonable, but she questioned whether they could properly be categorised as persistent. Any failings were over a fairly short period and were not of enduring significance; their effects could properly be described as limited and transient. The present case fell to be contrasted with the circumstances in Aberdeenshire Council v R 2004 Fam.L.R.93, in which the evidence was of persistently inadequate parenting (with particular concern regarding nutrition) over a period of more than one and a half years.

[69] Turning to the incident of 22 March 2002, T only left K and the other children in the care of her neighbour for 15 to 20 minutes, and there has been no repetition of this incident. That cannot be categorised as amounting to persistent failure - see East Lothian Council v A 2002 S.C.106 (at para.[25]). There were inconsistencies between the evidence of Douglas Aitchison and Anne Adams about any prior discussions regarding babysitters. If the Social Work Department had concerns about RE (who was after all a relative of K and lived across the landing from T) then it should have taken steps to address these concerns. Even taken with the social workers' other concerns about safety, feeding, the open window etc, it cannot be said that any failings by T were persistent standing the short timescale involved.

[70] With regard to whether T was withholding her agreement unreasonably counsel accepted that this required to be assessed objectively, from the viewpoint of the hypothetical reasonable mother. The date at which this falls to be assessed is the date of the Court's decision, and all the evidence before the Court as to what was or was not done must be deemed to be within the knowledge of the hypothetical reasonable parent. Counsel pointed to the following factors which a reasonable parent would take into account in considering whether to withhold agreement:

(i) T is the natural parent of K. Severing the link between a natural parent and a child is a drastic intervention by the State which should only be done when there is cogent evidence before the Court (West Lothian Council v McG 2002 S.C.411).

(ii) The petitioners have failed in their statutory duties to consider alternatives to adoption. The petitioners were obliged to consider whether adoption was likely best to meet the needs of K or whether for him there is some better practicable alternative, and provide a written report of the consideration given to alternatives to adoption - see section 6A of the 1978 Act and Regulation 11 of the Adoption Agencies (Scotland) Regulations 1996 (S.I.1996/3266). The Court could not be satisfied that the petitioners have ever cogently addressed the alternatives available to them, either in these proceedings or in the previous Sheriff Court proceedings. She considered the evidence of Anne Brind, Barbara Leitch, Linda Hawthorn and Pat Driver and concluded that there was no proper consideration given to alternatives to adoption.

(iii) The petitioners failed to have regard to T's up to date circumstances in 2006 when considering whether to proceed with the present proceedings. Pat Driver had never visited T in her home and made no reference to up to date circumstances in her Form E report, and this formed no part of the discussion of the permanence panel in November 2006.

(iv) Although the hypothetical reasonable parent would find the delays in resolving K's future a matter of concern, no blame for these delays can be attributed to the respondent, who has merely exercised her legal rights. I was referred to Dundee City Council v GK 2006 S.C.326 (at paras.[77]-[79]). In the present case the hypothetical reasonable parent would have regard to T's increased maturity and to her stable relationship with GR.

(v) The petitioners have failed to attempt rehabilitation between T and K. The parenting assessment which was carried out between August 2003 and May 2004 was fundamentally inadequate; it did not allow T any proper opportunity to demonstrate her ability to parent K; it lacked focus, it dragged on for too long and it caused confusion and distress to K. Moreover, while the assessment was being carried out K's social worker presented his case to the permanence panel seeking advice regarding the process of permanence.

(vi) Social workers placed K with foster parents and introduced them to him as his new Mummy and Daddy, his "forever family". This amounted to promotion of a situation which would be both confusing and distressing for K when he was maintaining contact with his mother.

(vii) The effect of a Freeing for Adoption Order would prevent T from seeking contact with K. If Mr & Mrs W lodged an adoption petition, T would have the right to seek an order relating to contact, and at that stage the determination would be solely what is in the best interests of K relating to contact.

(viii) K has been with Mr & Mrs W since March 2005, in a settled environment living with people whom he regards as his "forever family" and whom he calls Mum and Dad. All of this has been achieved without the need for a Freeing Order or an Adoption Order. This demonstrates that adequate stability can be provided for K on the basis of a foster placement, without the need for freeing for adoption.

[71] Counsel submitted that when all of these factors, and all the other circumstances of the case, were considered, the petitioners have failed to make out the ground in section 16(2)(b) of the 1978 Act. If neither of the grounds has been established, the Court cannot pass to the second stage of the test, and the petition requires to be dismissed.

[72] If I were to be against her in respect of either branch of the first stage of the test, counsel went on to consider the second stage of the test, namely whether an order dispensing with T's agreement to an adoption order ought to be made. At this point the Court had to have regard to all the circumstances of K's case, the paramount consideration being to safeguard and promote his welfare throughout his life. In order to grant this petition, the Court would need to be satisfied that adoption would achieve this end, that all alternatives thereto had been explored and that these do not best meet K's needs. It was also necessary to have regard to section 24(3) of the 1978 Act and in particular the Court shall not make the order sought unless it considers that it would be better for K that it should do so than that it should not. Counsel submitted that there was insufficient evidence to enable the Court to reach this view. In particular, there was not enough evidence to show that alternatives to adoption have been adequately considered, nor what such alternatives are. It is not enough to say that K needs a family in which he can feel secure, and that he feels secure with Mr & Mrs W. They gave evidence that they would want to provide a home for K permanently, even if this petition is not granted, as K's long term foster parents. It is not apparent that it is better for K that this order should be granted than that it should not. This being so, even if the Court were to be satisfied on one or other branch of the first stage of the test, it cannot be satisfied as to the second stage of the test and the petition should be dismissed.

[73] Finally, if the Court was against the respondent in the foregoing submissions, counsel invited me to refuse the motion made on behalf of the petitioners in terms of section 18(9) of the 1978 Act that K shall forthwith cease to be subject to compulsory measures of supervision. There was insufficient evidence to enable the Court to reach the view that K is no longer in need of compulsory measures of supervision. The effect of an order freeing K for adoption would be to transfer the respondent's parental rights and responsibilities to the petitioners. The Childrens Hearings provide a check and balance to the exercise of the petitioners' powers in this regard, and it was appropriate that this should continue pending an adoption petition being lodged by Mr & Mrs W.

Reply for the petitioners

[74] Counsel did not accept that the petitioners had failed in their statutory duty under section 6A of the 1978 Act to consider whether adoption was likely best to meet the needs of K or whether for him there is some better practicable alternative. The petitioners looked at alternatives to adoption in October 2004 when considering whether to make arrangements for K's adoption, and it was clear from Linda Hawthorn's evidence that possible alternatives were looked at and the decision was made that there was no better practicable alternative to adoption. With regard to T's current circumstances, Patricia Driver stated that she had substantial contact with Margaret Galbraith, T's social worker, and there was nothing to suggest that T was able to care for K.

Discussion

[75] In considering the evidence, parties helpfully and properly focused the issues by the lodging of the Joint Minute of Admissions already referred to. Where there was dispute between the parties on a particular point, I preferred the evidence for the petitioners to that for the respondent. I found the witnesses for the petitioners to give their evidence in a careful and considered manner. Many of them were professional social workers or healthcare professionals, and all were clearly motivated by K's best interests. I found each of them to be credible and reliable.

[76] Although I formed the impression that T did her best to tell the truth on most matters, I did not find her to be entirely credible or reliable. In particular I did not find her to be credible in her evidence relating to the period around the incident on 22 March 2002. I accepted the evidence of Douglas Aitchison to the effect that he had discussed with her shortly before 22 March 2002 that she must not use a babysitter without first checking with the Council. Although it is agreed in the Joint Minute of Admissions (and of course I proceed on this basis) that on 22 March 2002 T was not aware that RE was a Schedule 1 offender, I did not believe her when she said that she knew nothing bad about him before this incident and that her remark to the police when they arrived that night that she knew him to be a "pervert" was just the first thing that came into her head.

[77] However, more importantly, I took the view that throughout much of her evidence T tended to minimise the difficulties which she had experienced in caring for K, and gave a more optimistic picture of her parenting abilities than was justified on the evidence. In saying this I do not suggest that T was deliberately misleading the Court, but I formed the view that because of her learning disabilities she did not understand the significance of some of the concerns expressed by the social workers, and that she found it impossible to consider matters from K's perspective. Although I do not doubt for a moment her love for K, her evidence seemed to me to be more motivated by her own wishes and needs than by a consideration of what may or may not be in K's best interests.

[78] I found G to be an impressive witness and have no doubt that he would provide emotional support and practical assistance to T, both in caring for the new baby and in the event that K was returned to them. However, he is the breadwinner for the family and although I accept his intention to reduce his working hours for a time, there was no suggestion that he would give up work. He cannot be expected to provide the sort of 24 hour support envisaged by Elspeth Kemp as being necessary for T, when she referred to a "live in Granny".

[79] Mr & Mrs McN were both clearly keen to provide as much support for their daughter's case as possible, but like T herself, they approached the matter with her rights and interests in the forefront of their minds, rather than the interests of K. They adopted different positions from each other - Mrs McN appeared to favour K being returned to their care, whereas Mr McN supported the idea of K being returned to T's care. I did not feel able to place great weight on their evidence, particularly as they had not made any approach to the petitioners to suggest that they might care for K after they ceased to do so in early 2003, and in view of the fact that the evidence which they gave before me appeared to be significantly different from the evidence which they gave before the Sheriff in late 2005.

[80] For these reasons I prefer the evidence led on behalf of the petitioners, including the productions referred to in evidence and in the Joint Minute of Admissions, to that on behalf of the respondent. Against this assessment of the evidence, I now consider whether the petitioners have made out the statutory tests necessary for success in this petition. There was really no dispute about the two stage approach which I require to adopt. This is clearly stated in the two Inner House authorities to which I was referred, namely Lothian Regional Council v A and West Lothian Council v McG, and I do not rehearse it here.

[81] The first stage of the test has two branches to it, namely the grounds specified in section 16(2)(b) and (c)(i) of the 1978 Act, and it is only if the petitioners can satisfy me that one or other of these branches is met that I must then proceed to the second stage of the test. I shall consider these branches in the same order as counsel addressed me on them.

[82] With regard to the ground in section 16(2)(c), I have reached the view without much difficulty that the concerns about T's parenting abilities expressed by Douglas Aitchison and Anne Adams in their evidence, and noted in the Health Visitor Ethel Turnbull's report dated 25 March 2002 (No.6/10 of process) were well founded, and that in these respects T failed without reasonable cause to fulfil the responsibility to safeguard and promote K's health, development and welfare. T did not cope adequately with K in the period from late 2001 to March 2002. On occasions she treated him roughly and lost patience with him. She could not see danger signs, and she placed her own needs in front of those of K; for example, she always found money to buy cigarettes for herself, but she did not provide adequate food for K. She would place him in front of the television and ignore any demands that he made. She gave him instructions which he did not understand (and could not have been expected to understand) and then became really angry with him when he failed to comply with these. She did not recognise sources of danger which could have resulted in injury to him (such as the open window beside furniture, access to the stairs, or keeping control of him when at the shops or crossing the road). She did not have enough time to persevere with K, and would claim that he did not like food, although he would take food when social workers fed him. She would allow him to run around the flat in a nappy which needed to be changed, and he was often left in a pyjama top and wet nappy. She was excessively moody and allowed this to impair her parenting of K - if she was in a bad mood, she would leave the flat in a mess, and she would not accept or follow advice from social workers. If her needs were not being met, K was not her main concern. She lacked insight into what was required to look after K.

[83] The events surrounding the incident on 22 March 2002 were the culmination of a course of failures. I am satisfied on the evidence that Douglas Aitchison did indeed discuss with T on about 13 March 2002 that she should be careful about whom she asked to babysit K and that she should not leave him with babysitters other than those agreed with the Council's social workers. She did not do this, but left him with RE, with potentially very serious consequences. Although she was not aware at the time that RE was a Schedule 1 offender, I am satisfied that she knew that he was not a suitable babysitter - she had used RE to babysit K previously. If she was not aware of any problems about RE babysitting K, why did she (as she stated she did) go to the trouble of trying to find M to babysit, when RE was just across the landing? And why, when the police attended later that night, did she tell them that RE was a "pervert" if she had heard nothing about him? She stated that this was the first thing that came into her mind, but I did not accept her on this point. Moreover, she appears to have minimised the importance of this incidence: she did not call the police herself, because she was afraid that K would be taken away from her. On the following Monday, having been told that she was not allowed to remove K from hospital, she treated him roughly and proceeded to attempt to remove him from hospital. All of these failures and actions on T's part suggest that she was unable to see things from K's perspective and that she placed her own needs before his. On the basis of the evidence (and bearing in mind also that T accepted the two sets of grounds of referral to the Childrens Hearing which form No.6/12 of process) I am satisfied that in the period between the latter part of 2001 and late March 2002 T failed to fulfil the responsibility to safeguard and promote K's health, development and welfare.

[84] I have limited my consideration to the period from the latter months of 2001 to late March 2002 because counsel for the petitioners expressly limited her submissions to this period, and did not seek to rely on the evidence about T's contact visits with K since April 2002 in considering this first branch of the first test. I make no criticism of her doing so, but observe in passing that conduct by a parent towards a child during contact visits is in my view capable, as a matter of law, of amounting to failure to fulfil parental responsibilities to safeguard and promote a child's health, development and welfare. The mere fact that a child is in foster care and only seeing a parent for contact visits does not mean that the actings or failures of a parent during those visits is irrelevant. However, in the present case, I have had no regard to anything which happened after the beginning of April 2002 when considering this branch.

[85] It was not in dispute that any failures by T to fulfil parental responsibilities required to be viewed objectively, through the eyes of a reasonable parent, and that her learning disabilities could not amount to reasonable cause - see Angus Council v C 2000 S.L.T.761.

[86] The question remains whether the failures noted above are properly described as persistent failures, so as to satisfy the ground in section 16(2)(c) of the 1978 Act. The period relied on by the petitioners is a long time ago - it ended almost 6 years ago. It did not last for very many months - the evidence did not include a precise starting point for the social workers' concerns, but the concluding point is clearly some days after the incident on 22 March 2002. Douglas Aitchison's concerns appear to have formed around December 2001, and those of Ethel Turnbull and Anne Adams were perhaps slightly earlier than this. The whole period of the failures relied on is therefore around 5 or (at most) 6 months.

[87] In this respect I have found the observations of the Second Division in G v M under reference to the English authority In re D (Adoption by Parent) [1973] Fam.209, to be of assistance:

"Clearly, the failure must not be merely a temporary or excusable one, nor one whose effects are limited or transient. It must be a failure of enduring significance, at the time when the Court is considering whether or not to dispense with consent. Each case, however, has to be judged on its own circumstances".

Counsel for T's submission that the incident on 22 March 2002 was a "one off" with no suggestion of repetition is in my view misconceived. That incident falls to be seen in its context, as the culmination of a period of repeated failures by T extending over some months. I have reached the view that the failures to which I have referred were neither temporary nor excusable, nor can it be said that their effects were limited or transient. Their significance remains, even at the present time when I am considering this petition. This is because they indicate a continuing difficulty which T had in seeing things from K's perspective, and not simply from her own needs. As I have noted above, I formed the impression when T was giving evidence in Court that she still had this difficulty, and that she was principally driven by her need to have K back and by her view that she was entitled to have him back because she was his mother. Her failures and actions in the period under consideration also indicated that she did not follow advice, she was moody and she had great difficulty in caring for K adequately. In light of Elspeth Kemp's expert opinion regarding the difficulties that a person with T's learning disability will experience in parenting, and her opinion that T is unlikely to improve in this regard, the evidence about the period in question is indeed of enduring significance. For this reason, notwithstanding the fact that the failures relied on by the petitioners extended to a period of only some 5 or (at most) 6 months in late 2001 and early 2002, I consider that they amount to persistent failure for the purpose of section 16(2)(c) of the 1978 Act, and I am satisfied that the petitioners have met this test.

[88] Turning to the other branch of the first test, I now consider whether, on the evidence, the petitioners have satisfied me that T is withholding agreement to K's adoption unreasonably. On this branch I have regard to what Lord Hailsham observed in Re W (an infant) [1971] A.C.682 (at page 709):

"Two reasonable parents can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable. The question in any given case is whether a parental veto falls within the band of reasonable decisions and not whether it is right or mistaken. Not every reasonable exercise of judgement is right, and not every mistaken exercise of judgement is unreasonable. There is a band of decisions within which no court should seek to replace the individual's judgement with its own".

[89] There is, therefore, a range of reasonable responses, and it is only if T's withholding of agreement is outwith that range that it can be said to be unreasonable. Bearing this in mind, can T's withholding of consent properly be categorised as unreasonable? On the basis of all of the evidence before me, I am satisfied that it is indeed unreasonable. It is understandable; as I have already observed, I do not doubt for a moment that T loves K and that she wishes to have him back with her. However, the test is an objective one, and a reasonable parent would in my view understand that T was not able to care adequately for K, and that adoption was in K's best interests.

[90] K has been in foster care for almost 6 years of his 7 year life. His father has never shown any interest in him, and the father's whereabouts are unknown. T's parents found caring for K so difficult and demanding, standing their other commitments including the care of T's daughter, S, that they were unable to continue caring for him in 2003. They have never indicated to the petitioners that they would be prepared to resume caring for K, and they did not state this at any of the regular Childrens Hearings that have been held with regard to K, nor during the course of the Sheriff Court proof. There is no suggestion that any other member of T's family would be a suitable carer.

[91] The evidence with regard to contact visits satisfied me that the quality of those visits was gradually declining and they were ceasing to have any benefit for K. T was losing interest in K before the end of a contact visit; on occasions she was more interested in discussing her own problems with the social workers than in caring for and stimulating K; she would take him on shopping expeditions which were not of interest to him, and talked to him about members of her family whom he did not know. She did not provide positive support for K's foster placements, but rather allowed her negative attitude to be apparent. She had, and continues to have, difficulty with K referring to his foster parents as Mummy and Daddy, even though she trusts them to make sure that K knows that she is his "tummy Mummy" and to show him cards and letters from her. A reasonable parent looking at all the evidence would conclude that T had experienced such difficulties in providing adequate care and parenting for K when K was living with her that K required to be taken into foster care in 2002; that despite considerable input from social workers and other support workers who gave advice to T and showed her what she should be doing, T's parenting abilities did not improve significantly in many important respects after K was taken into care; that there is little prospect, standing T's learning disabilities, that her parenting abilities will improve; that increasingly K was finding contact with T upsetting and difficult, and this was having a detrimental effect on his progress and emotional development; that since contact was stopped K has progressed well and has shown no desire to see T and has "blanked" his foster parents when they have raised her in conversation; and that K is happy, stable, well cared for and progressing well with his foster parents, who propose to adopt him if he is freed for adoption.

[92] Counsel for T raised several factors which she submitted a reasonable parent would take into account in deciding whether to withhold consent (listed at paragraph [70] above). I accept that severing the link between a natural parent and a child is a drastic intervention by the State, and ought to be done only when there is cogent evidence before the Court. I am satisfied that there is such evidence in this case. It was also submitted that I could not be satisfied that the petitioners have ever cogently addressed the alternatives available to them, under reference to section 6A of the 1978 Act and Regulation 11 of the Adoption Agencies Regulations. While I agree that there is not much by way of written evidence to indicate consideration of alternatives to adoption, the minutes of 8 October 2004 (No.6/71 of process) do provide some (albeit very brief) support for the view that alternatives to adoption were considered. However, Linda Hawthorn gave evidence that she clearly remembered alternatives to adoption being discussed at the permanence panel meeting on 8 October 2004, and that alternatives such as long term fostering and a Parental Responsibilities Order were discussed and all possible options as alternatives to adoption were considered before the recommendation to proceed with freeing for adoption was made. I accepted her evidence in this regard.

[93] I agree that it would have been helpful if social workers had considered T's up to date circumstances shortly before giving evidence at the proof before me. (It would also have been helpful to have had an updated report by Elspeth Kemp following upon a more recent examination of T). However, in light of Elspeth Kemp's opinion that because of her learning disabilities T's parenting abilities would be unlikely to improve in the future, and taking into account the regular contact between Patricia Driver and Margaret Galbraith, I do not consider that this was a critical failure on the petitioners' part. Moreover, it was cured by my having evidence before me as to T's up to date circumstances. Having heard this evidence I formed the clear view that many, if not all, of the difficulties which T had experienced in parenting previously would be likely to occur if K was returned to her care. She continues to have lack of insight and places her own needs before those of K. While it may be the case that she is more emotionally stable and secure than she was in 2001 and 2002, and while I have no doubt that G will provide her with help and support, G will not be available to provide this on a 24 hourly basis, and there will be the additional responsibility of caring for a newborn baby. I am satisfied that there has not been such a material change of circumstances since T's parenting abilities were last assessed to warrant the view that she is now able to care adequately for K herself.

[94] As already indicated above, I do not criticise T for exercising her legal right to appeal, nor do I blame her for the delays in resolving K's future. However, the fact of these delays, and the related facts that K has not lived with T since March 2002 and that he has been living with Mr & Mrs W since March 2005 where he has been happy and secure are facts which a reasonable parent would take into account when deciding whether or not to withhold agreement.

[95] I do not accept the criticisms of the parenting assessment carried out between August 2003 and May 2004. There will inevitably be artificialities and difficulties in carrying out such an assessment when a child is not living with the parent full time, and I take account of these; however, notwithstanding these, I am prepared to accept the evidence of the witnesses who spoke to this assessment, and the assessment report itself. Similarly, I do not accept the criticisms of the petitioners for the way in which they introduced foster parents to K. Several witnesses spoke to the fact that it was K himself who started calling the respondent "Mummy T" and his foster parents (first Mr & Mrs McL and then Mr & Mrs W) "Mummy and Daddy". I do not consider that it was anything done by the petitioners or by the foster parents which caused confusion and distress for K when he was having contact with T; rather, it was T's failures and her attitude towards K and to the foster parents which caused this confusion and distress. While it is true that the effect of a Freeing for Adoption Order is that there is no scope for the making of an order for contact, in light of the difficulties with contact in the period up to June 2006 I do not consider that this is a factor which would weigh heavily with a reasonable parent when considering whether to withhold agreement.

[96] Having regard to all of the evidence, I am satisfied that the decision by T to withhold agreement falls outwith the band of decisions referred to by Lord Hailsham in Re W (an infant), and is unreasonable. It follows that this branch of the first stage of the test is satisfied. Each of the grounds relied on by the petitioners, namely those in section 16(2)(b) and (c) of the 1978 Act, are established.

[97] I must now turn to the second stage of the test, namely, whether an order dispensing with T's agreement to an adoption order ought to be made. At this stage I must have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of K throughout his life as the paramount consideration. I must also bear in mind the provisions of section 24(3) of the 1978 Act, which, besides reiterating that the welfare of the child concerned is the paramount consideration, provides that the Court shall not make the order in question unless it considers that it would be better for the child that it should do so than that it should not.

[98] I have little difficulty in reaching the view that it is in K's best interests that an order declaring him free for adoption should be made. Many of the considerations which have been discussed already are relevant also to this part of the test. K is happy, healthy, secure and progressing well in the care of Mr & Mrs W. Although it was suggested that this shows that long term foster care can provide an adequate framework for K and that there is no need for adoption, I do not agree with this. I accept the evidence given by Linda Hawthorn and Barbara Leitch to the effect that adoption provides a more secure long term solution; long term foster care (or any other disposal) would result in K remaining "within the system", which would be more likely to cause distress, confusion and instability. T would remain entitled to request a Childrens Hearing on a quarterly basis, and in due course it is likely that K would be required to attend these. I can understand that from T's point of view this would be desirable, but I see no benefit (and some potential disbenefit) to K of such a course of action. Mr & Mrs W both stated that they wished to adopt K if he is free for adoption, although they would wish to continue to be his long term foster parents if no freeing order were to be made. I am satisfied that it would be better for K that he should be freed for adoption than that he should remain with Mr & Mrs W in long term foster care. There is no realistic alternative being proposed by way of long term foster carers; I am not satisfied on the evidence that K's best interests would be served by being placed with T's parents, nor is there any other suitable member of T's family suggested. For the reasons outlined above, I do not consider that T has sufficient parenting abilities to care adequately for K herself, with or without the support of G. While it is correct that there is no scope for a contact order being made in the event of a Freeing for Adoption Order being granted, against the history of persistent difficulties in contact visits in the period up to June 2006, and no contact visits since then, I do not consider that this is a reason for refusing the order sought. I am satisfied that K is in the care of the petitioners and that it is likely that he will be placed for adoption with Mr & Mrs W in the event of a Freeing Order being granted. I am also satisfied that K's father cannot be found and in any event has never shown any interest in K; I am satisfied that he has no intention of applying for (or if he did apply, it is likely that he would be refused) an order under section 11 of the Children (Scotland) Act 1995 and has no intention of entering into an agreement with T under section 4(1) of that Act. Having regard to the need to safeguard and promote K's welfare throughout his life as the paramount consideration, I am satisfied that it is in his best interests that a Freeing Order should be made in terms of section 18(1) of the 1978 Act and that it would be better for K that such an order should be made than that it should not be made.

[99] For all these reasons I shall grant the orders sought in the petition, namely an order declaring K free for adoption, and dispensing with T's agreement on the grounds specified. I am also satisfied that in consequence of the making of these orders compulsory measures of supervision in respect of K are no longer necessary. Although counsel for T sought to persuade me that the supervision requirement would remain useful and provided a check and balance to the petitioners' exercise of parental rights and responsibilities pending an adoption petition being lodged by Mr & Mrs W, I do not consider that this submission is well founded. K has been happy and settled with Mr & Mrs W for almost 3 years. T trusts them to continue to care for K properly, and also to maintain indirect contact between T and K. There is nothing in the evidence to suggest that compulsory measures of supervision remain necessary, either with regard to Mr & Mrs W's care of K, or with regard to the petitioners' exercise of parental rights and responsibilities pending adoption. I shall therefore grant an order in terms of section 18(9) of the 1978 Act determining that K shall forthwith cease to be subject to a supervision requirement.